Big change for cannabis use in South Africa

However, this comes with the caveat that it will only qualify if the products have no pharmacological action or medicinal purpose.

According to Altair Richards, an executive at ENS’ Corporate Commercial Practice, this change would mean that “more products that are currently regulated as Schedule 6 substances will, following the publication of the final amendment to Schedule 6, not be regulated as Schedule 6 substances.”

This adds an important step to South Africa’s journey of decriminalising cannabis use and clearing up the regulatory minefield surrounding its use, both privately and commercially.

Proposed changes unpacked

Cannabis contains a large number of active components called cannabinoids. Two cannabinoids that have had particular focus in legislation are THC (tetrahydrocannabinol) and CBD (cannabidiol).

CBD was down-scheduled back in 2019 to a Schedule 4 substance, with an exception notice wholly de-scheduling certain CBD-containing preparations and products. This was followed by a significant rise in consumer products on the market containing the substance.

However, until now, the THC in cannabis has remained verboten unless in negligible doses.

Historically, products containing THC were defined as being a Schedule 7 drug – the same schedule as narcotics like heroin. However, this changed to Schedule 6 following the Constitutional Court’s ruling in 2018.

Schedule 6 and Schedule 7 are narcotics and other controlled substances and poisons like morphine. These are not easy to access and, according to South Africa’s Medical Society, “are only used in extreme cases”.

“Scheduled substances may be listed in more than one schedule, based on the dosage form, route of administration, strength, indication, dose, duration of treatment or a combination of such factors,” said Richards.

Currently, THC is listed as a Schedule 6 substance with current exceptions for:

The proposed amendments to Schedule 6 have the effect of amending the circumstances that will exclude a substance or mixture of substances that contains THC from being included as a Schedule 6:

“The exclusions have the effect that substances and mixtures (including substances intended for human ingestion containing any % of THC or processed products made from cannabis containing any % of THC) falling within the above exceptions would not be scheduled substances regulated in terms of the Medicines Act,” Richards said.

“In effect, products, including products for human consumption, will not fall within the scope of schedule 6 if they have no pharmacological action or medicinal purpose – in contrast to the current regulatory regime, which excludes products from schedule 6 based on a set percentage of THC content,” she said.

While the proposed changes appear to be another big step for opening up and decriminalising the private use of cannabis in South Africa, Richards noted that there are other parts of the country’s laws which still do not align.

Specifically, amendments to the Drugs and Drug Trafficking Control Act and relevant schedules still need to be made to ensure that cannabis use is above board and lawful.

Currently, the Drugs and Drug Trafficking Control Act stipulates that “No person shall use or have in his possession—…(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance…”.

Its current scheduling specifies that “Undesirable Dependence-Producing Substances”, include “cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol].”

Cannabis law in South Africa

The Constitutional Court in 2018 upheld a ruling finding that sections of the Drugs and Drug Trafficking Act were unconstitutional, leading the way to the decriminalisation of private cannabis use in South Africa.

The court gave the government two years to correct the flaws in the country’s regulations, which led to the introduction of the Cannabis for Private Purposes Bill, 2020, which is still awaiting assent from the National Council of Provinces (NCOP).

This bill ultimately seeks to allow for the cultivation of a stipulated quantity of cannabis plants, possession of a prescribed amount of cannabis and the use of cannabis for private individuals.

It also aims to expunge the criminal records of those convicted of possessing or using cannabis or dealing in cannabis based on a presumption and permit for commercial activities involving cannabis.

However, with the laws making a slow journey through parliament, various uncertainties within South Africa’s cannabis legislation remain open – both for consumers and business people, who risk falling on the wrong side of the law.

There are still numerous loopholes, grey areas and legal implications for those who violate the Bill. This includes the fact that “any person who deals in cannabis is guilty of an offence and is liable on conviction to a fine or imprisonment.“

“The appropriate amendments must still be made to the Drugs and Drug Trafficking Control Act to align with the Constitutional Court judgement,” said Richards.

Current laws allow for cannabis use and cultivation in private spaces, but the definition of a “private space” is unclear. This has led to confusion regarding whether certain spaces, like homes and cars, qualify as private spaces.

Public comments for the proposed amendments will be open until Thursday, March 14, 2024.